TRAFFORD & VILLERS; TRAFFORD & KERWOOD

[2010] FamCA 891

FAMILY COURT OF AUSTRALIA

TRAFFORD & VILLERS;
TRAFFORD & KERWOOD [2010] FamCA 891

FAMILY LAW – CHILDREN –ADOPTION – By step-parent– Whether to grant leave to commence proceedings pursuant to s 60G of the Act

Adoption Act 2009 (Qld)
Adoption of Children Act 1964 (Qld)
Family Law Act 1975 (Cth) Div 12A, ss 60G, 69ZN, 69ZT
Family Law Rules 2004 (Cth)

Fogwell & Ashton (1993) FamCA 113

APPLICANTS: Mr and Mrs Trafford

1^st RESPONDENT: Mr Villers

2^nd RESPONDENT: Mr Kerwood

FILE NUMBER    TRAFFORD & VILLERS	BRC	7218	of	2010
TRAFFORD & KERWOOD	BRC	7233	of	2010

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 6 September 2010

REPRESENTATION

THE APPLICANTS: In person by telephone

THE RESPONDENTS: In person by telephone

Orders

IT IS ORDERED IN THE FILE OF BRC7218/2010 THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants MR TRAFFORD and MRS TRAFFORD to commence adoption proceedings of the children S VILLERS born … September 1994 and R VILLERS born … March 1996.

IT IS ORDERED IN THE FILE OF BRC7233/2010 THAT

1. Pursuant to section 60G of the Family Law Act 1975 leave is granted to the applicants Mr TRAFFORD and MRS TRAFFORD to commence adoption proceedings of the child C KERWOOD born … September 2000.

IT IS NOTED that publication of this judgment under the pseudonym Trafford & Villers; Trafford & Kerwood is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7218  of 2010   &   BRC 7233 of 2010

MR AND MRS TRAFFORD

Applicants

and

MR VILLERS

1^st Respondent

and

MR KERWOOD

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. An application is brought by Mr and Mrs Trafford for leave to adopt in respect of three children: C, born in September 2000; S, born in September 1994; and R, born in March 1996.  S and R share the same biological father.  C has a different father. 

2. The applications are brought together.  Each of the biological fathers of C and S and R, respectively, have been served with the applications.  Each has filed an affidavit indicating that they consent to the adoption of their respective children and acknowledge that they have been served with all of the material in support of the respective applications.  I will deal with both applications in this one set of reasons.

3. This is an application by a step-parent for leave to adopt pursuant to s 60G of the Family Law Act1975 (“the Act”).

4. As Chisholm J remarked in Fogwell & Ashton (1993) FamCA 113:

   It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter court’s ordinary jurisdiction.  Nevertheless, that is the consequence of the provisions of the Family Law Act1975 (“the Act”).

5. His Honour went on to say:

   In these undefended proceedings, it is appropriate for this court to rely on the presumption that the relevant provisions of the Family Law Act are constitutionally valid.  I note, however, that for reasons developed by Dr Jessep in a jointly-authored article, their validity may well be arguable:  C.O. Jessep and R. Chisholm, “Step-parent adoptions and the Family Law Act” (1992) 6 Australian Journal of Family Law 179 at 182-185, discussing, in particular, Re LSH; ex parte RTF (1987) 75 ALR 469.

6. No argument is addressed in respect to the constitutional validity of the provisions of the Family Law Act. In this ex tempore judgment.  I will assume, as did his Honour, that the provisions are constitutionally valid for the purposes of these proceedings. 

7. Adoption of children in this state is governed by the Adoption Act2009 which came into force on 1 February 2010. 

8. The new Act specifies criteria different to those in the previous Act. Critically, the Act requires prospective adopting stepparents to satisfy, in addition to previous criteria, two new criteria, namely that the relevant child or children is or are at least five years old and not yet 17, and secondly, that this court has granted leave to adopt.

9. Further, a natural parent must, absent an order of the court dispensing with same, obtain consent of the other parent, irrespective of whether the natural parents of the children were married. 

10. Section 60G of the Family Law Act1975 (“the Act”) was inserted into the Act in 1995 after the decision in Fogwell & Ashton, to which I have earlier referred, in which his Honour Chisholm J considered whether the criterion of best interests applies to an application for leave to adopt. The Act now makes it plain that a decision whether to grant leave is governed by a determination of best interests (section 60G(2)). The note to that section makes it plain that familiar best interest considerations, contained in section 60CC of the Act, apply.

11. While, as has been observed, the failure to obtain leave now has consequences under the (new) State Act, it also has consequences under the Act. Section 61E of the Act provides:

    (1)      This section applies if: 

    (a)a child is adopted; and

    (b)immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent, and whether because of section 61C or because of a parenting order.

    (2)[Parental responsibility ends on adoption of child] The person’s parental responsibility for the child ends of the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

12. The expression “prescribed adopting parent” is defined in s 4(1) of the Act as follows:

    Prescribed adopting parent in relation to a child means:

    (a)     a parent of the child; or

    (b)the spouse of, or a person in a de facto relationship with, a parent of the child; or

    (c)a parent of the child and either his or her spouse, or a person in a de facto relationship with the parent.

13. Section 65J of the Act provides:

    1.     [Application of section] This section applies if: 

    (a) a child is adopted;  and

    (b)immediately before the adoption, a parenting order was in force in relation to the child.

    2.[Effect of adoption on parenting order] The parenting order stops being in force on the adoption of the child, unless the adoption is via prescribed document parent, and leave was not granted under section 60G for the adoption proceedings to be commenced.

14. Thus, an effect of adoption is that all parental responsibility for the child or children ceases, as do all other parenting orders. Parental responsibility is defined in the Act in section 61B:

    In this Part, parental responsibility in relation to a child, means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

15. Proceedings for leave to adopt pursuant to section 60G of the Act are, in my view “child-related proceedings” within the meaning of the Act and, specifically, within the meaning of Division 12A. That Division imposes duties upon the court included among which are to deal with as many aspects of the matter as possible on a single occasion.

16. Moreover, the court is required to apply a number of principles in the determination of child-related proceedings, all of which are directed towards focusing the court upon the interests of children and the impact of proceedings on children.  In my view, those matters apply no less so in proceedings of this type. 

17. I note, in particular, section 69ZN of the Act requires the court to consider the impact that the conduct of the proceedings may have upon the child, and the court is instructed to actively direct, control and manage the conduct of the proceedings and that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

18. As if to underline the last mentioned principle (contained in section 69ZN(7)), section 69ZT makes specific provision with respect to the rules of evidence, and in particular, as it might apply to this case, the rules relating to the receipt of hearsay evidence.

19. It is important to understand that the decision facing this court is different to the decision which will face the court charged with the decision whether to permit the adoption (which, after 1 February 2010, is the State Magistrates Court).  The granting of leave does not have the consequences just described;  only the order for adoption made by that State court has those consequences (see generally Fogwell at paras 23ff).

20. Having said that, it is important to observe that the State legislation does bear upon the decision to be made in these proceedings. 

21. First, the leave of this court is a precondition to the making of an order for adoption in favour of a step-parent by the State Magistrates Court. 

22. Secondly, and importantly as it seems to me, the State court must consider (as well as the general requirement to consider the best interests of the relevant child or children) the matters enumerated at s 208 of the State Act. For example:

    208:    Requirements for making final adoption order

    The court may make a final adoption order only if it is satisfied of the following matters –

    …

    (e)an order for the child’s adoption by the step-parent would better promote the child’s well-being and best interests than an order under the Family Law Act1975 (Cth), any other court order or no court order;

23. In a similar vein, although neither consent, nor specified ages of the child or children are specified as requirements of the application under the Act in this court, nevertheless they seem to me to be directly relevant to such an application, if for no other reason than that this court ought not grant leave to permit proceedings in the State court which are doomed to fail because of the absence of those mandatory (State) prerequisites.

24. The question then, in my view, can be expressed this way:  is it in the relevant child or children’s best interests to permit adoption proceedings to proceed in the (State) Magistrates Court with the potential consequences that a parent shall (with the consent of the other parent or, absent consent, by court order) cease to have any of the duties, powers, responsibilities and authority in respect of his or her child, as distinct from orders being made in this court that might involve the parent and step-parent.

THE PRESENT APPLICATIONS

1. S and R are the children of Mr Villers.  On 16 January 1998, the Family Court at Darwin made orders by consent which provided that the children would live with their mother and that they would have contact with their father as agreed to include, if living in the same town, each Friday night, or, if living in different towns, up to four weeks per year. 

2. Mr Villers still resides in Darwin.  Mr and Mrs Trafford and the children are living in far western Queensland. 

3. Despite those orders being made Mr Villers has spent extremely limited amounts of time with the children since the relationship between he and Mrs Trafford broke down. 

4. It seems that he has spent very little, if any, face-to-face time since 1997, has had no telephone communication with the children since about 2004 and has not paid child support regularly since about 1997 except for the Child Support Agency seizing his funds in the early 2000s. 

5. Mr and Mrs Trafford commenced their cohabitation in about March of 2007 and married in 2007.  They have maintained a committed and apparently happy relationship in the ensuing three years.  It seems that Mr Villers knew the mother and the children before they further cohabitated.

6. It is abundantly clear on the material before me that Mr Trafford provides for the children’s day-to-day necessities and for their psychological and emotional needs.  The material reveals that he has a good relationship with these teenage boys and that they look to him with respect and relate to him in a loving, committed and entirely appropriate way. 

7. It seems that each of the boys plainly identify with Mr Trafford as their father and the affidavit material reveals, for example, that they turn to him with respect to issues that they are concerned about and the like.

8. The two children just referred to share their home with their half-sibling, C, who is the subject of the second application that will be dealt with in these reasons. 

9. C was born in September 2000 and is therefore almost 10 years old.  C’s father, Mr Kerwood, resides in South Australia.  The relationship between he and Mrs Trafford broke down around about 2001. 

10. He too has been served with all of the material, as his acknowledgment of service indicates, and he, like Mr Villers, appears by telephone today and confirms that he has received that material and consents to the application for adoption proceeding in respect of C.

11. Mr Kerwood, too, has, on the material before me, had a very limited relationship with C.  She has not lived in the same household as her father since she was about six months old.  It seems that there were a couple of phone calls in 2005 and some letters and phone calls in 2007 with some arrangements for them to meet in November 2007. There has been no attempt by Mr Kerwood to contact C since about 2007. 

12. Like S and R then, C has looked to Mr Trafford to be, as it were, her father-figure in the three years of more that he and Mrs Trafford have been cohabitating and married.  Like the boys, it seems plain that C’s necessities are met by the commitment of Mr Trafford to them and he is meeting her psychological and emotional needs.  Like the boys, the evidence reveals that she turns to Mr Trafford with questions and for emotional support.

13. The family unit formed by Mr and Mrs Trafford and the three children is, on all of the affidavit evidence before me, a healthy, loving and committed family unit in which all three children would appear to be thriving. 

14. It seems to me, in the circumstances of this case, that leave should be granted for the adoption of each three children to proceed before the State Magistrates Court and I so order.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 September 2010.

Associate: 

Date:  4 October 2010